Why Obama Is Threatening to Veto a Defense Bill Over Detention Policy

The White House is threatening to veto a long-awaited defense funding bill over a perennial policy dispute: whether the President can prosecute terrorists in civilian courts, or must transfer them to military custody. The battle has raged since the very first day of Barack Obama’s presidency, but this time Obama’s opponent is not the GOP. It’s the powerful Democratic chairman of the Senate Armed Services Committee, Carl Levin of Michigan.

Originally, Levin worked with the SASC’s conservative Democrats (like Joe Lieberman) and GOP members (like John McCain and Lindsey Graham) to produce a bill that would have mandated transfer of captured terrorists to military custody. The White House briefed wary liberals two weeks ago not to worry, though, that they were engaged in negotiations with Levin and the GOP to change the language. “They were very optimistic that they were going to get an agreement,” says one Senate aide.

But last Tuesday, Levin marked up the bill in private and moved it straight to the Senate floor, where Senate majority leader Harry Reid promptly scheduled it for debate. And while Levin had responded to some of the White House’s concerns, he didn’t give it much of what it wanted, and even hawkish national security lawyers are objecting.

Levin says he accepted White House changes to a section that for the first time gives legislative authority for the indefinite detention of Americans in the U.S. And he inserted several loopholes that he says soften the requirement that al-Qaeda terrorists arrested in the U.S. must be transferred to military custody.

The administration in response issued a four-page “Statement of Administration Policy” (pdf) Thursday, stating that the bill “would tie the hands of our intelligence and law enforcement professionals” and would be “inconsistent with the fundamental American principle that our military does not patrol our streets.” Further, the administration said, Levin’s loopholes—particularly a provision allowing the Administration to issue a waiver–“fails to address these concerns.”

Said the White House: “Any bill that challenges or constraines the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”

On the floor of the Senate Friday, Levin said he’d accepted all of the Administration’s changes regarding indefinite detention, and that the requirement to transfer suspects to military detention “does not mandate military custody” because of the waiver. “Nothing is automatic,” Levin said.

“The White House got rolled,” says the Senate aide, who admits the bill is nevertheless likely to pass. “The votes don’t exist to change it,” the aide says. Moreover, the White House veto threat is significantly more vague than previous ones on the subject of detention, declining to refer specifically to the authorization bill itself, and leaving the Administration a way out if it decides it doesn’t want to continue this fight with a veto in an election year.

The White House declined to comment beyond the four-page document. The Senate is scheduled to recess for Thanksgiving, and the bill will likely be voted on when they return, certainly before the end of the year.